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Tza’ar Ba’alei Chaim

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This column is dedicated to the refuah sheleimah of Shlomo Eliezer ben Chaya Sarah Elka.

In this week’s parshah Bilam decides to approach Balak with the intention of cursing the Bnei Yisrael. En route his donkey refused to continue on the path, continuing to veer to the side of the road. At one point the donkey smashed Bilam’s leg into the wall. Bilam hit his donkey three different times. The reason that his donkey would not proceed is because it saw that there was a malach standing in the road with his sword drawn. Bilam did not see this and therefore hit his donkey. Hashem then allowed the donkey to speak to Bilam and inform him as to why he was not continuing down the road. Then Hashem allowed Bilam to see the malach as well. The malach said to Bilam, “Why have you hit your donkey three times?”

The Rambam, in Moreh Nevuchim (chalek 3, perek 17), writes that this is the Torah source that one is not allowed to cause pain to an animal – known as tza’ar ba’alei chaim. There are many other sources brought in the Rishonim and Acharonim regarding this. Rashi, in Shabbos 128b, says that tza’ar ba’alei chaim is derived from the pasuk in Parshas Mishpatim, “Azov ta’azov imo.” Rabbeinu Peretz, in Baba Metzia 32b, says that there is no Torah source for tza’ar ba’alei chaim; rather, it is a halacha l’Moshe miSinai. The Shita Mekubetzes, in Baba Metzia there, quotes a Ra’avad that says that it is drawn from the aveirah of placing a muzzle on an ox when he is plowing. The Charedim (14:1) says that tza’ar ba’alei chaim is part of the mitzvah of vehalachta bidrachav (and we should follow in Hashem’s ways). The Chasam Sofer, in Baba Metzia there, says that tza’ar ba’alei chaim is derived from the pasuk of “verachamav al kol ma’asav” (and He has mercy on all of His creations).

However, the source that the Rambam cites is difficult to understand because the pasuk he cites is discussing a Ben Noach. Why was Bilam called out on the prohibition of tza’ar ba’alei chaim, when the Bnei Noach are not obligated in tza’ar ba’alei chaim? It is not one of the seven mitzvos that they are obligated to keep. In fact the Eishel Avraham (Mebutchach Orach Chaim 305 on the Magen Avraham 13) and the Pri Megadim (Mishbitzos Zahav Orach Chaim 468:2) say that the Bnei Noach are not obligated in tza’ar ba’alei chaim. It seems from the Rambam that cites the source for tza’ar ba’alei chaim from Bilam that the Bnei Noach are obligated in tza’ar ba’alei chaim. But why is this so?

Like the Rambam, the sefer Chassidim (666) says that the source for tza’ar ba’alei chaim is derived from Bilam and explains why the Bnei Noach are obligated in this mitzvah. It says that until the time of Noach people were not allowed to kill animals – even for the purpose of eating them. After the Mabul, Hashem allowed Noach and all future generations to kill animals for the sake of eating or benefiting from them. This permission was only granted for the purpose of eating and other benefits. Hurting an animal for no purpose would violate the original prohibition that was given to Adam HaRishon not to kill animals.

Another explanation can be offered based on Rabbeinu Nissim Gaon’s introduction to Gemara. He says there that everyone is obligated to keep any common-sense mitzvah. From the day that Hashem created the world and placed man in the world, it is incumbent upon man to follow common sense. Murdering innocent people and stealing are examples of things that everyone can understand not to do; thus they are obligated not to commit these wrongful acts. The Rokeach (366) says something similar, namely that everyone, including the Bnei Noach, are obligated to follow common-sense laws such as giving charity, respecting elders, and ensuring that one’s property is safe.

We can surely agree that tza’ar ba’alei chaim (torturing an animal for no benefit) is a common- sense law that should be forbidden. Thus Bilam was punished for hitting his donkey for no reason. Therefore, we can learn from this that we too are forbidden to do tza’ar ba’alei chaim.

One interesting point to note regarding this source for the aveirah of tza’ar ba’alei chaim is that Bilam thought that he was hitting his donkey for a good reason. If one has a legitimate cause to hit his animal he may do so, and it would not be a violation of tza’ar ba’alei chaim. Why then was Bilam punished for his actions? Even though his donkey saw the malach, Bilam did not. Bilam thought that his donkey was simply going astray for no reason. Thus he hit it.

Perhaps we can answer that the Bnei Noach are responsible for their actions even when those actions are b’shogeg – and are not forewarned. But the Rambam, in Hilchos Melachim 10:1, rules that this only applies when the person knows what he is doing; he just does not know that it is forbidden. For example, he knows that he is killing another person but does not know that this action is forbidden. In such a case he would be liable for the murder. However, in Bilam’s case, he did not know that what he was doing was baseless torture. So why was he punished for his actions?

The meforshim explain that the purpose of the malach appearing to Bilam, and at first only allowing the donkey to see him, was to send a message of humility to Bilam. Maybe Bilam was called out for hitting his donkey, as it was a wrong action, but he was not actually held accountable for his actions since they were indeed b’shogeg.

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